Why Trump must save the government's privacy board

The terror attack in a popular Istanbul nightclub on Sunday is yet another reminder of the need for capable and vigorous counterterrorism programs. At the same time, the United States has always been defined by its commitment to individual liberty and the rule of law. The question is how to reconcile an aggressive campaign to defeat terrorist groups and secure the homeland with those enduring values.

The answer is not, as the cliché goes, to find a “balance” between civil liberties and security. Balancing implies that one value can simply be traded off for the other. Instead, Americans rightly expect their government to deliver both liberty and security. Policymakers have attempted to meet those expectations by ensuring that the government’s powerful intelligence capabilities are matched by equally powerful oversight bodies, including key committees in Congress and the independent Foreign Intelligence Surveillance Court in the judicial branch. But the first line of defense sits within the executive branch itself, with privacy officers, inspectors general and one relatively new but important agency: the bipartisan Privacy and Civil Liberties Oversight Board.

The board has only recently become a credible, visible oversight agency — yet it is already on the verge of becoming defunct, with too few Senate-confirmed members to function. This would be a setback for Americans’ privacy and civil liberties. But counterintuitively, it would also have an immediate and detrimental effect for national security and counterterrorism. The board’s reports can help legitimize controversial programs and prove to skeptical allies that the U.S. prioritizes privacy protections. By contrast, a defunct board would be an embarrassing eyesore on the oversight landscape, degrading U.S. credibility and fueling skepticism abroad.

The board was inspired by the 9/11 Commission, which called for an independent “board within the executive branch to oversee … the commitment the government makes to defend our civil liberties.” Congress created the board in 2007 to ensure that counterterrorism programs appropriately account for privacy and civil liberties. The board remained relatively obscure until 2013, when Edward Snowden’s leaks unleashed a furious international debate over government surveillance. Two reports — the first on the National Security Agency’s bulk collection of telephone call records, the second on the targeted collection of international internet and telephone communications (known as Section 702) — established the board as a credible, independent and informed watchdog for the intelligence community.

Unfortunately, the five-member board may soon become moribund as members depart and are not replaced. The board’s chairman resigned early last year, and President Barack Obama did not nominate a replacement. One member’s term expired Tuesday; another plans to retire on Saturday; and a third member’s term will likely expire in March. That will leave only one member, but the board needs a quorum of three to operate. Another problem is that without a chairman, the board cannot hire needed staff, such as a replacement for its outgoing executive director.

This isn’t just a problem for privacy: A functioning, credible, independent board is good for the intelligence community, too. For example, in July 2014 the board issued a landmark report on Section 702, a provision of the Foreign Intelligence Surveillance Act that allows the government to collect the electronic communications of non-Americans located overseas for foreign intelligence purposes. Precisely because of the board’s independence, its judgment that Section 702 is “valuable and effective” provides a powerful argument for reauthorizing the program before it sunsets in December. More broadly, the board’s reputation as a vigorous and independent voice helps intelligence officials make the case that U.S. surveillance programs are subject to robust oversight and legal controls.

What will happen if no new members are appointed and the board becomes paralyzed? The general loss of trust and credibility for the intelligence community is certain, yet hard to measure. But at least one concrete consequence will likely be a tougher line from European courts in current legal challenges to the Privacy Shield agreement, which allows companies to transfer customer data from Europe to the U.S. and is critical to many American businesses. The issue in those cases is whether Europeans’ data is adequately protected in the U.S. — and the board has been a key element of American officials’ argument that it is. For example, in a letter meant to assuage European concerns related to Privacy Shield, the general counsel of the Office of the Director of National Intelligence cited the board and its public reports as evidence of the “rigorous and multi-layered” oversight of U.S. intelligence.

If the board ceases to function just as these cases are moving forward, it will validate European skepticism (whether legitimate or not) about U.S. intelligence practices and greatly increase the likelihood that Privacy Shield will fall. That will be an unwelcome headache for the Trump administration and a distraction from higher-priority issues, such as immigration, trade and replacing Obamacare.

By contrast, moving quickly to fill the vacancies on the board would take little effort and be all political upside for the new president. It would signal to the American public and international partners that the Trump administration takes these issues seriously. And it would be an early act of bipartisanship: The board’s statute requires the president, before appointing the board’s two minority-party members, to “consult with the leadership of that party … in the Senate and House of Representatives.”

Finally, once new members are appointed, Congress should ensure that the board is as effective as possible. Most importantly, it should exempt the board from the Government in the Sunshine Act, which requires multi-member boards to convene in public rather than privately. That makes sense for boards that exercise regulatory authority, but it makes no sense for an oversight body whose only power is to issue reports. And the open-meetings rule has reportedly made it very difficult for board members — who are part time and reside in different locations — to collaborate efficiently.

Since 2013, the board has been a success — but a fragile one. The Trump administration would benefit the country, and help itself, by ensuring that this success continues.

Adam Klein is a senior fellow at the Center for a New American Security and an author of CNAS’ recent report on the future of surveillance policy.